Is Winter Fuel Payment being devolved?

I contributed to a briefing session today for the Poverty Alliance. I was challenged on a point about Winter Fuel Payment, and as I’ve been asked to give chapter and verse I thought I might as well throw it in here.

The Smith Commission suggested that both Cold Weather Payments and Winter Fuel Payments should be devolved. The Scotland Bill doesn’t however refer to Winter Fuel Payment. There is an exception for “meeting or reducing expenses for heating in cold weather”. But the Winter Fuel Payment is not – despite the name – a payment for heating in cold weather. I say that because cold weather is not one of the criteria for paying it.

Winter fuel payments were introduced as part of the Government’s initiative to tackle fuel poverty amongst pensioners. Winter fuel payments give older people reassurance that they can afford to heat their homes in winter. They are paid in a lump sum each winter to ensure that money is available when fuel bills arrive.

The statutory definition of the winter fuel payment comes from 1998 regulations:

“winter fuel payment” means a payment made under these Regulations out of the social fund, to meet expenses for heating pursuant to section 138(2) of the Contributions and Benefits Act.”

“Payments may also be made out of that fund, in accordance with this Part of this Act, of a prescribed amount or a number of prescribed amounts to prescribed descriptions of persons, in prescribed circumstances to meet expenses for heating which appear to the Secretary of State to have been or to be likely to be incurred in cold weather.”

The 2000 regulations (SI 2000/729) replaced the 1998 regulations, but they simply use the phrase “winter fuel payment” without explanation.

From the outset, Winter Fuel Payments have covered circumstances where expenses appear … to be likely to be incurred – that is, winter. It is not essential that they actually do occur, because they’re addressing a budgeting problem, not a problem of energy consumption. That’s a critical difference between the WFP and the cold weather payment. The European Court of Justice decided, in the Taylor case, that WFP was straightforwardly a benefit for old people – and that is why it has been payable in other countries, regardless of the weather.

I don’t think it can be assumed, then, that Winter Fuel Payment is included in a provision that covers “expenses for heating in cold weather”. Which is why Lord Kirkwood’s proposed amendment in the Lords, to add the words “including the Winter Fuel Payments scheme” to the Bill, really ought to be accepted.